The recent Court of Appeal Decision, Pacific National Pty Ltd v Baldacchino (2018) NSWCA 281 has provided important clarification of injured workers rights to medical expenses in NSW, particularly in respect to any type of joint replacement surgery.
Time limits for payment of medical expenses
S59A of the Workers Compensation Act 1987 (Act) outlines the time limits which apply to payment of medical expenses in respect of a work place injury. Simply, if you are an injured worker who has exhausted their entitlement to statutory weekly compensation payments (5 years or 260 weeks) and have been assessed as suffering less than 10% whole person impairment, you are entitled to payment of your ongoing reasonably necessary medical expenses for a period of 2 years.
Moreover, if you are assessed as suffering 10% to 20% whole person impairment, you are entitled to further 5 years medical expenses if deemed reasonably necessary by the workers compensation insurer.
Naturally, these finite time limitations can have significant implications upon an injured workers access to ongoing treatment. Such time limitations may not always accommodate the natural deterioration of an injury and the unforseen need for surgery 10 to 20 years in the future of an injured worker.
Importantly, S59A of the Act provides that the above time limitations in respect of ongoing treatment (when assessed at 0%- 20% whole person impairment) do not apply to medical expenses concerning:
(a) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries),
(b) the modification of a worker’s home or vehicle,
(c) Secondary surgery
The term artificial aid has been helpfully clarified by the abovementioned Court of Appeal decision. Whilst numerous claims in the past pursuant to the Act have asserted joint replacement surgery is classed as an artificial aid, the decision of Pacific National Pty Ltd v Baldacchino (2018) NSWCA 281 now provides binding authority confirming that joint replacement surgeries are classed as artificial aids and not captured by the time limitation provision of S59A.
Simply, this means that if a worker has suffered an injury and their entitlement to medical expenses has ceased by operation of S59A, the worker will continue to be permitted to claim for any type of surgery which is classed as “joint replacement”.
The decision of Baldacchino provides guiding interpretation of the definition of an artificial aid, stating that the “aid” must work to ameliorate the effect of a persons disability and may compromise of a single object or a composite of objects working together.
Therefore, if you are an injured worker who has suffered a workplace injury in the past and now require a surgery, it may be important to seek legal advice as to whether the cost of the proposed surgery can be covered by your workers compensation insurer.
Get in touch with us
At Turner Freeman Lawyers, we specialise in Worker’s Compensation claims. If you or someone you know has been injured and you are unsure of their entitlements, we encourage you to call 13 43 63 to speak with one of our Personal Injury Specialists today. Our NSW offices are in Sydney, Parramatta, Campbelltown, Newcastle, Penrith, Wollongong and Gloucester.
